Maintenance Court: an introduction
The Nelspruit Magistrate's Court hosts a Maintenance Court where applications for the creation or amendment of maintenance orders are heard.
A divorce is a painful experience. Many lose track of the administrative implications that the divorce procedure entails and the legislator has decided to entrench the right to maintenance in the Maintenance Act 99 of 1998. This act provides a framework for the protection of the right to maintenance of children affected by a divorce.
The Maintenance Act was implemented to support the realisation of, amongst others, section 28 of the Constitution of the Republic of South Africa, which grants children the rights to family care or parental care or an appropriate alternative when removed from the family environment. The constitution states that a child’s best interests are of paramount importance in every matter concerning the child.
The maintenance system provides to a broad range of people, who do not always have legal representation. The maintenance system can therefore be divided into two broad categories. A person approaches the maintenance court for one of two reasons: either a maintenance order is required for the first time, or the problem consists of a maintenance order no being obeyed and the person approaching the court wants it to be enforced.
The main types of maintenance applications relating to children may be summarised with reference to the following scenarios:
- A parent receives no child support from the other parent and there is no existing court order. This parent will then make an application for a first maintenance order. In cases where child support is received without there being an existing court order, an application for a first maintenance order may also be made.
- Where a parent is already receiving child support from the other parent in terms of an existing court order. Should this parent want to change the amount that they receive due to this amount being insufficient; an application for an increase in maintenance may be lodged.
- A parent who is paying child support in terms of an existing court order who wants to change the amount because he/she cannot afford that much, may apply for a decrease in maintenance payable.
- A maintenance order may be set aside where the child in respect of whom maintenance is paid, now earns his or her own salary.
Also read: Maintenance Court cannot fail mothers
The Nelspruit Magistrate’s Court can be approached for the creating or amending of a maintenance order or to have it set aside.
